MARKET CORRECTIVE RULEMAKING: DRAWING ON EU INSIGHTS TO RATIONALIZE US REGULATION

• 成果类型: Article
• 署名作者: Bull, Reeve
• 署名单位: Duke University
• 刊物名称: ADMINISTRATIVE LAW REVIEW
• ISSN/ISSBN: 0001-8368
• 发表日期: 2015
• 页码: 629-684
• 关键词: COST-BENEFIT-ANALYSIS

摘要

When justifying the government's role in intervening in the free market, economists and legal scholars alike point to the problem of market failures: laissez-faire capitalism may not produce optimal outcomes in certain cases, and government interventions can promote overall market efficiency. The existence of such market failures is not terribly controversial; the question whether government regulators can correctly identify these flaws and devise appropriate solutions, by contrast, is significantly more contentious. Unfortunately, under the existing regulatory framework, government officials are not especially well positioned to make these difficult determinations. Congress does not, as a general matter, consider the economic costs and benefits of statutes designed to correct perceived market flaws. Administrative agencies generally do consider these costs and benefits, but they seldom carefully reassess existing interventions and often lack the statutory authorization to tailor regulatory programs to respond to changing market forces. The unfortunate result of this dynamic is partisan gridlock and regulatory inertia: conservatives in Congress refuse to authorize new regulatory programs, fearing that any such intervention will prove impossible to reverse, and progressives strongly defend existing market interventions, fearing that acknowledging any inefficiencies will validate the anti regulatory narrative. This Article seeks to alter that dynamic, offering a new approach to regulation designed to correct market failure's. It proposes a new, optional track for rulemaking aimed at remedying perceived market flaws, dubbed market corrective rulemaking. In developing the proposal, this Article, calls upon several innovations adopted by the European Union. Given the significant differences between the U.S. and EU regulatory regimes, this Article adapts these procedures fora U.S. context, drawing from the comparative strengths of both systems. Under market corrective rulemaking procedures, Congress would delegate sweeping powers to agencies to correct certain market flaws, but it would impose certain procedural requirements, including pre-notice of proposed rulemaking outreach to relevant stakeholders and comprehensive retrospective review, and would require the rulemaking agencies to assess both economic costs and benefits and disruption to existing market forces. Though Congress would possess complete discretion in determining whether to direct agencies to undertake market corrective rulemaking or instead rely on the informal rulemaking default, the existence of such an alternative could help resolve much of the prevailing gridlock, offering an opportunity for narrowly tailored market interventions that can be readjusted over time.